Martin To Dingell: No Early Release of Rules


Washington – Federal Communications Commission chairman Kevin Martin told the agency top’s watchdog in the House that he has no intention of letting the public review the text of rules before they are adopted by the nation’s top media regulatory body.

Martin, in a Dec. 10 letter to House Energy and Commerce Committee chairman John Dingell (D-Mich.), didn’t provide a thorough explanation for his stance except to say he wasn’t required by law to produce the rules in advance of a vote.

“The Administrative Procedures (sic) Act … requires that we describe in a notice to the public `either the terms or substance of the proposed rule or a description of the subjects and issues involved,’’” Martin said. “The APA does not require that we publish the exact text of a proposed rule, and in fact, it has not been standard practice to publish separately proposed rules prior to adoption of an order.”

The APA, enacted in 1946, does not bar the FCC chairman from releasing the text of a rule, as Martin did a few weeks ago for his proposal to allow a newspaper and a TV station to combine in the top 20 markets, provided the TV station isn’t ranked among the top four and at least eight independent media outlets would remain afterward.

“Because of the unusually controversial nature of media ownership proceeding, I took the extra step of publishing the actual text of the one rule I thought we should amend in advance of the upcoming [FCC] meeting on Dec. 18,” Martin said.

Martin’s seven-page letter – which had no date or page numbers – came in response to series of questions from Dingell, who has opened an investigation into the fairness and openness of Martin’s management of the FCC. Dingell made Martin's response public Tuesday afternoon.

The cable industry has often complained about being ambushed because Martin has routinely put out vaguely worded cable proposals that mask his true intentions, which in some case have been harshly punitive.

For example, the cable industry did not have an opportunity to vet the FCC rule adopted Nov. 27 that will yield a 75% reduction in leased access rates. Under federal law, cable operators needs to set aside 15% of their channels to third parties that want to rent channels for commercial use. The FCC regulates the rates MSOs may charge.

In a June 15, 2007 notice of proposed rulemaking on leased access reform, the FCC was parsimonious in dropping hints about a 75% slash in rates: “We seek comment on the Commission’s rate formula for leased access. If a commenter seeks modifications, we seek comment on the specific methodologies that the Commission should consider and how such methodologies would better serve Congress’ statutory objectives in a legally sustainable way.”

The cable industry is expected to fight the new leased access rates in federal court.

In another example, Comcast went to federal court last Monday to overturn the FCC’s five-year extension of the cable program access rules in September. In addition to attacking the substance of the rules, Comcast is also challenging the legality of the FCC's process, claiming that the agency's final order “was adopted without adequate notice of the rules therein … (and) was adopted “without observance of procedure required by law.”